Shamila Batohi, the outgoing National Director of Public Prosecutions, started her career in the National Prosecuting Authority as a junior prosecutor at the Chatsworth Magistrates’ Court in 1986.
She rose, after a hiatus in The Hague working for the International Criminal Court, to the rank she will hold until her 65th birthday next January when she reaches the compulsory retirement age and is obliged by law to stand down from her leadership position, a post which she attained in February 2018.
Relying on an informal presidential guarantee of her independence in her work, Batohi started out bright eyed and bushy tailed. She was full of eagerness to clean up prosecutorial dysfunction and lack of productivity in the wake of the Jacob Zuma years which were characterised by State Capture.
President Cyril Ramaphosa was full of promises of renewal and expressed an intent to clean up the corruption mess left by Zuma. Batohi’s appointment was during the brief period of “Ramaphoria” that expired all too soon after he took over from Zuma.
The independence Batohi expected has proved to be a chimera, as elusive and unattainable as the figure in Greek mythology: the “Khimaira”, which was a monstrous fire-breathing hybrid female creature from Lycia in Asia Minor, composed of different animal parts, with the head of a lioness and the tail of a serpent.
Batohi soon discovered that State Capture extended to the NPA itself, with saboteurs of good prosecutorial work planted in every provincial office as well as at head office where, mercifully, her deputies, Nomgcobo Jiba and Lawrence Mrwebi, were swiftly dispatched.
The process of cleansing the NPA has been slow and patchy. Saboteurs linger. Gauteng DPP Andrew Chauke, only recently suspended for his role in the persecution of Glynnis Breytenbach, General Johan Booysen and also SARS officials who were inconvenient to the agenda of Tom Moyane, Zuma’s fiscal tsar.
The fact that two years elapsed between Batohi requesting Chauke’s suspension pending a disciplinary inquiry and the President acting on the request, says it all. Months later, no disciplinary inquiry is in evidence and no board of inquiry has been appointed by the President.
As Batohi has discovered, the NPA is not an independent body. It is constitutionally enjoined to operate “without fear, favour or prejudice”, but these features are hallmarks of operational impartiality, not independence.
Section 39 of the 1998 NPA Act is as good as it gets, legally speaking, to bedding down impartiality. It says nothing about independence:
“ Disclosure of interest and non-performance of other paid work:
(1) The National Director, a Deputy National Director and a Director shall give written notice to the Minister of all direct or indirect pecuniary interests that they have or acquire in any business whether in the Republic or elsewhere or in any body corporate carrying on any such business. (2) The National Director, a Deputy National Director and a Director shall not, without the consent of the President, perform any paid work outside his or her duties of office.”
Section 32 does require all prosecutors to take an oath of office in which they swear to act impartially. This section is also silent on the issue of prosecutorial independence.
The harsh truth is that the NPA is operated as a programme within the Department of Justice. The director-general of justice is its accounting officer. He or she is not even a member of the NPA. The minister of justice is given “final responsibility over” the NPA and is required to concur in all prosecutorial policies that are fashioned by the leadership of the NPA.
These features make it clear that independence is not the name of the game for our prosecution service and all who serve in it.
Actual decisions to prosecute or not to prosecute, taken at provincial level, are subject to review by the NDPP. These review processes tend to move with glacial speed, as experienced before global warming.
The role of the NDPP as head of the NPA is akin to that of a thoroughly emasculated head of a minor subsidiary company with reporting lines to a draconian head office.
No independent decision-making is allowed without sign-off from head office. Policy direction of the minor company can be vetoed by the chairperson of the main board (the minister of justice).
Financial affairs are under the control of a person outside the minor company who is closely allied to the chairperson of the main board. Acting without fear, favour or prejudice in the role of head of the minor company has a short shelf life, as is evidenced by the lack of longevity of all of the previous incumbents before Batohi. Not one of them served a full term of office.
Batohi has served for less than a full term due to her age at the inception of her term; the rule that all NDPPs should retire at 65 is both counterproductive and ageist – it should be revisited when Parliament gets round to revisiting the independence of the NPA and the requirements appertaining to its leadership.
The Constitutional Court has ruled that dealing effectively with corruption requires a body outside executive control. The NPA is not such a body.
When it debates the DA’s bills that envisage a new Chapter 9 anti-corruption body, Parliament will have to grasp the nettle and decide on a constitutionally compliant way forward. The specialised nature of anti-corruption work and the insistence of the court on a single body for anti-corruption work both suggest that the NPA should be deprived of its mandate to counter serious corruption and organised crime. That mandate should logically be given to the new Chapter 9 body.
While the Constitution gives the President an unfettered discretion to appoint the NDPP, a process was put in place before Batohi was appointed and that process is currently under way again in the search for a successor who may either apply or be nominated, with her or his consent, for the post soon to be vacated by Batohi.
This small step forward by the President has been spoiled for some jaundiced observers who have noted that too many of those serving on the panel that will recommend the winner of the process currently under way have little or no exposure to or experience of the prosecution service or the requirements of a suitable candidate to lead it.
Despite losing popular support in the 2024 elections, the ANC persists in its fealty to the National Democratic Revolution. It is the only member of the Government of National Unity with an NDR agenda.
The strategy and tactics of that revolution are aimed at securing hegemonic control of all the levers of power in society. The leadership of the NPA is such a lever. A safe pair of hands is required by the revolutionaries, especially given the exposure of some in the leadership of the revolution to being prosecuted for the crimes identified during and by the Zondo Commission of Inquiry into State Capture.
More worrying evidence is pouring out in the Madlanga Commission of Inquiry which has yet to report. An interim report is due from it at the end of October 2025 and may include reference to the need to comply with the court rulings referred to above.
Not since the prosecutions of Jackie Selebi, Tony Yengeni, the Travelgate fraudsters and John Block have any “big fish” been landed by the NPA in its efforts to prosecute the corrupt in high places.
There is no shortage of evidence to support charges against the 97 ANC leaders fingered as corrupt by the Zondo Commission. Instead, the NPA, unwilling to put effort into procuring evidence against these individuals to prove their guilt beyond reasonable doubt, sits as frozen as a rabbit (or Khimaira) in the headlights, awaiting the outcome of arguably irrelevant review proceedings against the Zondo findings.
The will to build cases against politicians is lacking; it is viewed as a career-limiting move (vide the experience of Vusi Pikoli) and this is likely to continue unless the rules of the game the NPA is constitutionally obliged to play are changed.
The court has pointed towards the way forward; the political will to implement properly what the court has ordered is still lacking, but may yet be formed by fear of losing the support of the electorate. DM